RICERCA ITALIANA     

Research program

Development of criminal law in the aereas of European interest in the perspective of the new reform proposals of the Treaties

University Co-ordinator

Università degli Studi di MODENA e REGGIO EMILIA - SCIENZE GIURIDICHE - ()

Research Unit Leader

Massimo Donini

Description

The “first phase” (see above "scientific background") is represented by a national criminal law that introduces sanctions related to EC rules, corresponding to a construction of the internal criminal offences founded on blank clauses (norme in bianco) and a technique based upon simple reference to Community law.
Now it is important to explore if it is possible to proceed in this way with respect to the new evolution in the EC law during the “second phase”: the building of a nuclear European criminal law, with originally unified rules and sanctions. It is also important to see how this development would be reflected on the penal laws passed during the “first phase”.
It is also necessary to think about the possibility to combine these two different options within a new penal codification. In fact both regulations with specific rules of conduct without sanctions, both EC directives and framework decisions built in criminal form and matter will continue to exist.
Our research group purposes: 1) to analyze and describe the techniques of construction of the principal criminal offences of EC origin in the fields of economic crimes and of public safety sectors and to analyze and describe the specific techniques of construction used in the project of private or Community origin that are oriented to a EC criminal law stricto sensu (Corpus Juris, Eurodelikte, Schünemann’s Project, directives and framework decisions interesting the criminal law); 2) to explore those two technical possibilities, in connection with two main areas of intervention for EC criminal policy: the economic interests, and the interests related with individual and collective safety; 3) to develop some “science of legislation” guidelines, or purposes de lege ferenda, in order to build the upcoming criminal laws of EC origin and about the internal techniques for the implementation of regulations featuring “criminal agnosticism” and the EC norms originally built in a criminal law perspective.
The main issue of the research will be the writing of “reports”: one about the problems in general, one about the economic law, another about the safety and precautionary legislation, and, finally, a conclusive publication of research issues, with the organization of an international Congress.
In the technical analysis of the problems, we will pay attention to distinguishing between Community interests and interests with an European extension. The first ones naturally require a unified or strictly harmonized discipline (see the model of Corpus Juris): e.g. EC officers bribery, frauds against the EC, or counterfeiting of Euro (Community crimes). The interests with a European extension, on the other hand, – e.g. the protection of financial market or of business creditors or the transparency of a company’s balance sheets or food products and work place safety – requires more limited forms of harmonization.
In this second case it is important to distinguish between the principle of subsidiarity in criminal law and in EC law. According to art. 5 of EC Treaty: “In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community”. This principle is reproduced in the project for a European Constitution at art. 9.3 and 9.4 (and in an annexed Protocol) and also in the projects of reform of the Treaties: see CIG2/1/07 REV 1 Bruxelles, 5.10.2007, art. 3 of protocol 1 and protocol 2, which are fully about subsidiarity and proportionality principles. The EC principle of subsidiarity should be coordinated with the criminal principle of extrema ratio: the EC, while protecting non-Community interests (which are also protected by Member states), could enhance a sufficient harmonization, in order to prevent the phenomenon of forum shopping, but could not introduce (in name of Community subsidiarity) new criminal offences, if that would go against the internal principle of criminal subsidiarity, because some states do not require such type of discipline: if in a country (e.g. in Denmark) the protection of certain interests is effectively assured by the introduction of administrative violations, according to the extrema ratio principle, it will not be necessary to introduce new criminal offences, although those instruments appeared necessary in a different country (e.g. in Greece). Otherwise, this “national margin of appreciation” of the extrema ratio shall not paradoxically maintain isolated areas of weak criminal law, without administrative violations, but ineffective. Therefore, it is vital to pursue a general coordination and a homogenous standard of criminalization. This issue has a great importance, in relationship with the ongoing reform of the Treaties, especially in regard of art. 69 F of the Project 5.10.2007, cit., (see national Project of this research: Mod. A) in which the Parliament obtained the power to fix minimum rules concerning crimes and penalties in the matter of the third pillar and concerning the most serious criminal offences (terrorism, drugs, organized crime, money laundering, illicit arm trafficking, corruption, counterfeiting of means of payment, computer crimes, sexual exploitation of women and children, etc.). Paragraph 2 extends this power to adopt directives in criminal matters in the areas which have been subjected to EC harmonization measures and if the harmonization in criminal law would be necessary for an effective policy of the EU.
The matter directly involves the relationship between criminal and administrative law. Criminal offences shall be formulated in accordance with the principles of legality, reasonability, offensiveness and culpability. This is also relevant in the perspective of an upcoming national codification. The EC inputs, concerning precautionary and safety matters (products, work, environment, food), will be examined in the light of that problem.

a) Protection of economic interests.
The process of construction of a European criminal law and criminal policy involved the economic matter during all the different phases just illustrated.
At first, this happened using the typical sanctions and instruments of EC law (especially administrative, but extremely afflictive and economically heavy sanctions), for example in the antitrust sector, in order to protect a primary interest, like freedom and loyalty of competition against serious corporate violations (e.g., abuse by undertakings of dominant position in the market, illicit agreements, trusts undertaking the limitation of competition). The model has been reproduced with similar assets and structures by Member states’ laws: creation of an independent authority, protection based on administrative sanctions.
A second guideline of intervention has directly chosen the Criminal law, as an instrument for protecting the EC financial interests (an economic interest of vital importance in Europe), against frauds and corruption committed by private citizens as well as Community officers. Several leading projects have been developed with the perspective of construction of a European criminal law (Corpus Juris; Green book); de jure condito, the most advanced instrument is represented by art. 280 TEC, that provides for the Member states to adopt measures in order to counter frauds affecting the EC financial interests: the protection shall be effective and Member States shall take the same measures to counter fraud affecting their own financial interests. These measures shall not concern the application of National criminal law. According to the main interpretation, a real competence of the Community in criminal matters is to be ruled out.
The criminal matter is directly a main question for EU law, i.e. the so called third pillar. Its legal instruments (framework decisions) have only indirectly involved the economic areas because they are mainly dedicated to counter organized and transnational crime. However, some framework decisions directly concern the economic criminal law, e.g. the ones relative to money laundering and bribery in the private sector.
Significant news are coming from the first pillar: the decision of CJEC 13.9.2005, C 176/03, concerning the protection of environment by means of criminal law, affirms the power for EC to compel the Member states to adopt criminal sanctions, if that is necessary in order to assure efficacy of provisions. The project of reform of the Treaties aims for directives that can be “established minimal norms relative to the definition of crimes and of sanctions” not only in the “fields of serious cross boarding crimes” but also in the areas which have been subjected to EC harmonization measures and if the harmonization in criminal law would be necessary for an effective policy of the EU (art. 69 F). This provision could probably concern the whole competences of Community powers.
By now, some advanced forms of harmonization, concerning white collar crimes, have been developed thanks to the instrument of the directive: the most important example is probably the provisions regulating the financial markets. The EC has made two interventions by using directives in 1989 (insider trading) and in 2003 (market abuse), which strongly influenced the national sanctions (both criminal and administrative). Subtle problems are coming out with reference to those experiences, leading to new intervening possibilities offered by the projected reform of Treaties: they concern techniques for building new criminal offenses, relationship between criminal offences and administrative violations, relationship between criminal prescription and non-criminal laws. The Italian law (l. 62/2005), that transposed the EC directive about market abuse shows a tendency to upset traditional relationships between criminal and administrative offences, so that different types of offences converge on a new configuration. Art. 69 F, with its broad provision, imposes to individuate upcoming areas for “establishing minimal norms relative to the definition of crimes and of sanctions” in economic matters, and to evaluate how much detailed those “minimal norms” shall be, and what will be the modern European version of extrema ratio principle.

b) The precaution principle and collective interests related with safety
The development of precaution needs, at Community and international level (see art.174 TEC; Communication of EC commission about precaution principle 2.9.2000), has found a political agreement in order to establish criminal sanctions against the violations of safety rules: although they were not totally accepted with scientific certainty, they are based on reasonable risks. While the debate is open in literature, we can describe some different models of legislation: from protection of collective (also upcoming in future) interests, to the application of precaution in order to explain causation concepts that are not based on scientific rules, to negligence consisting in causation of intolerable risks, to offences based on risky standardized situations; from adoption of contempt of court and violations against rules, authorizations, and orders, to reinterpretation of traditional crimes of concrete danger as crimes involving only precautionary risks. The choice between criminal and administrative law comes as a new field for investigation, but also for political and institutional discussion. The analysis of technical solutions about eventually formulating new criminal offences appears to be an urgent issue, if we want that the discussion shall not become only ideological and contingent.
The protection of collective interests relative to environment, food, products, workers safety are typical fields for an approach based on precaution principle. A clear national example is represented by criminal laws about products safety: see now art. 112 of Code of Consumers (d.lgs 206/2005, especially art. 103 and 107, concerning with the definition of safe product and violations against measures based on precaution principle); or else in matter of GMO, see art. 35-36 d.lgs. n. 224/2003, transposing dir. 2001/18/CE; d.lgs. 70/2005, introducing sanctions against violations of reg. CE n. 1829/2003 and 1830/2003.
The research will be developed through a comparative law investigation extended on main Member states in order to search for different formulations of criminal offences, especially those combined with precaution logic. We will investigate about their Constitutional legality, in reference to the structures of crimes, in particular “contravvenzioni”: simple conduct, omission, presumed danger, contempt measures adopted by national and European independent Authorities, violations against legal authorizations, or duties for previously communications, or safety proceedings.
This research will be extended to techniques applied in EC provisions (regulations and directives), both in suggesting models for offences and suitable, legitimate sanctions, with the perspective of an EC based criminal law.